2013 (4) TMI 273 - HC - Service Tax

Renting of immovable property service - Writ petition - Extended period of limitation - Wrong Interpretation of Section 11(A)(1) of the Central Excise Act and Section 73(1) of the Finance Act, invoking the extended period for demanding tax and also wrongly concluded that the petitioner has an intention to evade the payment of tax, - Held that - There is an appeal remedy available to the petitioner - Learned counsel also pleaded that subsequent to the filing of the writ petition, the petitioner preferred an appeal on 28.12.2012 with a delay of 34 days before the appellate authority and the same is pending consideration - If the appeal is disposed of on merits, entire claim of the petitioner as put forth before this court would be redressed. These are merits of matter, which can be looked into by the Appellate Authority and hence this writ petition is not maintainable in view of the effective alternate remedy available and the petitioner has also filed appeal - Accordingly, the writ petition is disposed of with a direction to the appellate authority to dispose of the appeal preferred by the petitioner on merits - Both parties are at liberty to raise all the points that are raised in the writ petition.

Issues:
1. Interpretation of Section 11(A)(1) of the Central Excise Act and Section 73(1) of the Finance Act for demanding tax.
2. Imposition of penalties for failure to register, pay service tax, and file returns.
3. Calculation of service tax based on income from immovable properties.
4. Jurisdiction of the respondent in demanding service tax.
5. Maintainability of the writ petition due to the availability of an appeal remedy.

Interpretation of Section 11(A)(1) and Section 73(1):
The petitioner, a statutory body, challenged the Order-in-Original by the Commissioner of Central Excise regarding the demand for service tax on renting immovable properties. The petitioner argued that the respondent wrongly applied the extended period for demanding tax and imposed penalties. They contended that the demand and penalties were baseless, erroneous, and arbitrary. The respondent, on the other hand, asserted that the petitioner failed to register, pay service tax, and file returns as required by the Finance Act, leading to a demand of service tax amounting to Rs. 79,33,135/- and Rs. 26,72,656/- for specific periods.

Imposition of Penalties:
The respondent imposed penalties of Rs. 5,000/- for non-filing of return and failure to apply for registration within the prescribed time limit, and a substantial penalty of Rs. 1,06,05,791/- for delayed payment. The petitioner argued that the penalties were unjustified as the actual service tax payable was lower than the demanded amount. The respondent justified the penalties based on the petitioner's failure to comply with registration, payment, and return filing requirements.

Calculation of Service Tax:
The respondent calculated the service tax based on the income shown in the trial balance sheet, including property tax and income from sources excluded from service tax on rent from immovable properties. The petitioner contended that this calculation was erroneous, leading to an inflated demand for service tax. The respondent defended the calculation based on the income received from renting immovable properties.

Jurisdiction of the Respondent:
The petitioner challenged the jurisdiction of the respondent in demanding service tax and imposing penalties. The respondent argued that the demand was in accordance with the Finance Act and relevant rules, emphasizing the petitioner's obligation to register, pay service tax, and file returns for renting immovable properties.

Maintainability of the Writ Petition:
The Court noted that the petitioner had an appeal remedy available against the impugned order, which they eventually pursued with a delay. The Court held that the issues raised by the petitioner could be addressed by the Appellate Authority, making the writ petition unnecessary. The Court directed the appellate authority to consider the appeal on merits, allowing both parties to present their arguments. The writ petition was disposed of with no costs.

---

← Previous Next →